DECISION ON APPLICATION BY MARIO CERKEZ FOR EXTENSION
OF TIME TO FILE HIS RESPONDENT’S BRIEF

____________________________________________________

Office of the Prosecutor:

Mr Upawansa Yapa and Mr Norman Farrell

Counsel for the Defence:

Mr Mitko Naumovski for Dario Kordic

Mr Bozidar Kovacic and Mr Goran Mikulicic for Mario Cerkez

1. The appellant Mario Cerkez (“Cerkez”) has sought an order, pursuant
to Rule 127(B) of the Rules of Procedure and Evidence (“Rules”), extending
the time within which he must file his Respondent’s Brief to the Appellant’s
Brief filed by the prosecution on 9 August 2001.1 The prosecution has filed a Response to the Motion,2 and Cerkez has filed a Reply.3

2. The application follows, and is associated with, an earlier flurry of
filings by the parties. The prosecution had sought an extension of time in
which to file its Respondent’s Brief to the Appellant’s Briefs filed by Cerkez
and his fellow appellant, Dario Kordic (“Kordic”), also on 9 August 2001.4 The extension sought was from 10 September to 1 October
2001, and in support of that application the prosecution had relied upon specific
matters arising from the nature and the complexity of the issues raised in
the Appellant’s Briefs which had been filed.5 The prosecution’s argument was accepted,6 and the extension sought was granted.7

3. In the meantime, Cerkez filed a document entitled “Appellant Mario Cerkez’s
Notice Pursuant to Rule 126 of the Rules of Procedure and Evidence”,8 in which he stated that a copy of the prosecution’s Appellant’s
Brief (which had been filed on 9 August and sent by the Registry to Croatia
on that date) had been received by his counsel only on 14 August, at approximately
6.30 pm and thus after the close of business on that day.9 He asserted that the time for filing his Respondent’s
Brief to the prosecution’s Appellant’s Brief therefore began to run from the
following day, 15 August,10
so that his Respondent’s Brief did not need to be filed until 13 September.
The prosecution responded that it did not necessarily oppose such an interpretation
of the Rules, but it sought a clarification from the Appeals Chamber as to
whether it was correct.11 The
present Motion filed by Cerkez renders the resolution of that issue largely
unnecessary, as he puts forward a considerably bolder proposition.

4. Cerkez says that, because the prosecution obtained an extension of time
until 1 October to file its Respondent’s Brief to his Appellant’s Brief, he
(Cerkez) must be entitled to a similar extension of time to file his Respondent’s
Brief to the prosecution’s Appellant’s Brief.12 He argues that he is entitled to a similar extension of time
not because he needs the additional time in order to file his Respondent’s
Brief (indeed, he expressly disclaims such an argument),13 but because of the principle of equality of arms, and
because the situation would otherwise be “manifestly prejudicial” to him.14 He identifies the prejudice as an unjustified advantage
to the prosecution in two ways:

(i) the prosecution will have twenty days more to file its Respondent’s
Brief to his Appellant’s Brief than he will have to file his Respondent’s
Brief to the prosecution’s Appellant’s Brief;15
and

(ii) the prosecution will become aware of the arguments he puts in his Respondent’s
Brief to its Appellant’s Brief before it has to file its Respondent’s Brief
to his Appellant’s Brief, and thus will have “an exceptional opportunity”
to use its Respondent’s Brief to answer those arguments. Cerkez adds:16

Every counsel would do that and every counsel would know how to use the
opportunity .

5. The argument based upon the principle of equality of arms is wholly misconceived
. That principle, taken from the jurisprudence of the European Court of Human
Rights , was adopted by Article 21.1 of the Tribunal’s Statute.17 The principle of equality of arms is described as being
only one feature of the wider concept of a fair trial.18 That wider concept includes not only the need for an
independent and impartial tribunal but also such things as the right of each
party to call witnesses “under the same conditions as witnesses against him”,19 an equal opportunity to present his case,20 and what is described as the fundamental right that
criminal proceedings are adversarial in nature – defined as meaning the opportunity
for both the prosecution and the accused to have knowledge of and comment
on the observations filed or evidence adduced by either party.21

6. The wider concept of a fair trial is thus correctly described in many
of those and other cases in terms of its application to both parties in the
trial (including a criminal trial). In Ekbatani v Sweden,22 the European Court of Human Rights held that the court
below had observed the principle of equality of arms because neither the accused
nor the prosecution had been allowed to appear in person but each had been
given equal opportunities to present their cases in writing. In Barberà v
Spain,23 the Court emphasised
that the provisions of Art 6(1) entail equal treatment of the prosecution
and the defence. In Brandstetter v Austria,24 the Court emphasised that both the prosecution and the
accused must be given equal opportunities in relation to the evidence tendered
by the other. In Dombo Beheer BV v The Netherlands,25 when referring to the Court’s case law concerning the
requirements of a fair trial, described the requirement of equality of arms
as providing a “fair balance” between the parties and as implying that each
party must be afforded a reasonable opportunity to present his case – including
his evidence – under conditions that do not place him at a substantial disadvantage
vis-à-vis his opponent.

7. The principle of equality of arms has been given a liberal interpretation
in its application to the Tribunal’s procedures, in recognition of the peculiar
difficulties under which both parties have to operate in this Tribunal.26 But the purpose behind the principle remains the same
– to give to each party equal access to the processes of the Tribunal, or
an equal opportunity to seek procedural relief where relief is needed.27 In relation to the present issues, the Rules provide
that either party may apply for relief, by obtaining an extension of time
in which to file its Respondent’s Brief, provided that “good cause” is shown
by the party applying.28 The
obligation to show “good cause” is placed equally upon both parties.

8. In the present case, the prosecution was able to show “good cause” for
the extension by reason of the nature and the complexity of the issues raised
in each of the Appellant’s Briefs. It was said that those Briefs raised some
thirty-one issues to which the prosecution had to respond, including issues
relating to the prosecution’s conduct at the trial (when the members of the
prosecution trial team were either no longer available or otherwise engaged),29 and therefore that additional time was needed by
the prosecution to file its Response. On the other hand, the prosecution’s
Appellant’s Brief to which Cerkez is required to respond is only thirty-seven
pages in length, and raises only two grounds of appeal – one as to the reasonableness
of a finding by the Trial Chamber as to his individual responsibility for
the Ahmici attack, and the other as to the sentence which was imposed.30 Cerkez , as it has already been stated, expressly disclaims
any suggestion that he needed additional time to respond to the prosecution’s
Appellant’s Brief.31

9. Where then does Cerkez show “good cause” for relief under Rule 127? It
cannot be “good cause” for an extension of time to be granted to Cerkez to
file his Respondent’s Brief to the prosecution’s Appellant’s Brief simply
because the prosecution has shown “good cause” for an extension of time to
file its Respondent’s Brief to the Appellant’s Briefs filed by Cerkez and
Kordic. That is to read into the right to equality of arms a right
to equality of relief, even when the circumstances are quite different
in each case and provide no basis whatsoever for granting equal relief. The
argument is rejected.

10. The other ground put forward by Cerkez was that the prosecution will
become aware of the arguments he puts in his Respondent’s Brief to its Appellant’s
Brief before it has to file its Respondent’s Brief to his Appellant’s Brief,
and thus will have “an exceptional opportunity” to use its Respondent’s Brief
to answer those arguments. It may be that some counsel would, as Cerkez
suggests, take advantage of such an opportunity, although I would not subscribe
to his suggestion that every counsel would do so. It is difficult
to imagine how the prosecution could do so in the present case with any real
pretence of legitimacy, as the only common issue in the two appeals relates
to the sentence imposed, with Cerkez directing his attention to matters of
mitigation and the prosecution directing its attention to matters of aggravation.
But what are the prejudicial consequences to Cerkez if the prosecution were
to use its Respondent’s Brief to answer matters relating to these issues
put by Cerkez in his Respondent’s Brief? The prosecution would have been entitled
in any event to answer those matters when the oral hearing of these appeals
takes place. If anyone would be advantaged (rather than disadvantaged ) by
this unlikely scenario, it would be Cerkez, who will have additional time
to prepare his refutation at the oral hearing of the appeal of any answer
the prosecution may slip into its own Respondent’s Brief.

11. Cerkez is, nevertheless, entitled to have consideration given to his
application for an extension of time upon the lesser basis by implication
put forward in his Notice, that he did not receive a copy of the prosecution’s
Appellant’s Brief until 14 August, after the close of business on that day.

12. Rule 112 provides that a Respondent’s Brief is to be filed “within thirty
days of the filing” of the Appellant’s Brief. Cerkez has submitted that the
reference to “filing” in Rule 112 must, however, be interpreted in accordance
with Rule 126 , which provides:

Where the time prescribed by or under these Rules for the doing of any act
is to run as from the occurrence of an event, that time shall begin to run
as from the date on which notice of the occurrence of the event would have
been received in the normal course of transmission by counsel for the accused
or the Prosecutor as the case may be.

There is certainly an argument available that the filing of the Appellant’s
Brief referred to in Rule 112 constitutes “the occurrence of an event” from
which the time for filing runs, so that (in accordance with Rule 126) time
would not commence to run in the present case pursuant to Rule 112 until the
time when a copy of the Appellant’s Brief would have been received by Counsel
for Cerkez in Croatia “in the ordinary course of transmission”. It is an attractive
argument, and minds may differ as to whether it is correct. However, such
an interpretation of the interaction between Rules 112 and 126 has already
been rejected by a Bench of three judges of the Appeals Chamber.32 The present case is hardly an appropriate vehicle for
seeking a reconsideration of that decision . Indeed, the difficulty in determining
in any particular case just when a document sent by the Registry to
Croatia (for example) “would have been received in the normal course of transmission”
suggests that the whole of Rule 126 requires a further consideration by the
Rules Committee.33

13. So far as the further submission made by Cerkez in the present case
is concerned – that time began to run from the day after his counsel
received the prosecution’s Appellant’s Brief – the fact that he received it
after the close of business hours , or even that in the normal course he would
have received it after the close of business hours, is irrelevant. Even under
Rule 126, it is the “date” when the copy would have been received in the normal
course which is relevant, not the time. There is no provision in the Rules
which gives to a party an extra day because a copy of a document which has
been filed is in fact received by him out of office hours, or even that it
would have been received by him out of office hours in the ordinary course.

14. Cerkez thus lost only five days of the time fixed by Rule 112 in which
to file his Respondent’s Brief to the prosecution’s Appellant’s Brief by reason
of the delay in delivery of a copy. Pursuant to Rule 127, Cerkeze is accordingly
granted an extension of five days to do so – that is, until 13 September 2001.34